Comments on the Appeals Process

A brief summary of our understanding of the appeals process:

An appeals review by the Ninth Circuit is limited to the record established in the lower court. This means that all parties are limited to the arguments, submissions, and findings already in the Court record for this case. No one, including the new Joint Tribal Coalition, may add new information to the record. The appeal is limited to the issues of law cited in Judge Jelderk's August 29, 2002 Opinion.

The deadline for appeals is October 29, 2002. The plaintiff scientists will be allowed to respond to the appeals. They could also file their own appeal if they have concerns they think are not adequately addressed in the Opinion. Amicus curiae ('friend of the court') statements may be submitted on behalf of either position.

It is our understanding that the Ninth Circuit must hear the appeal. Usually three judges are selected from the panel of judges sitting on the Ninth Circuit. It is common practice for a judge from the original district to be on the panel. The appeal may be heard in any of a number of cities including San Francisco, Portland, or Seattle. The Ninth Circuit will set the schedule, but we can reasonably expect the appeals to be heard in two to three years.

Some issues in the case might not be appealed. If the Ninth Circuit overturns a part of the Opinion, it will not affect any unappealed rulings from the lower court.

If an Opinion is upheld, the precedent expands to the entire Ninth Circuit.

Either side may appeal a Ninth Circuit opinion to the Supreme Court.

Likely appeal: The key Issue of "Native American"

A court rules on a law as it is written. In this case, the Court ruled on the legal language Congress used in NAGPRA. The Court did not state what the definition of Native American should be, as this is not the Court's responsibility. Congress is responsible for defining the term Native American or for modifying it.

Stated simply, the Court ruled that NAGPRA does not apply to the Kennewick Man skeleton because those human remains cannot be shown to be Native American as defined in NAGPRA.

The Department of the Interior's definition of "Native American" was ruled to be arbitrary and capricous. The Court found that the definition the DOI used is not stated in NAGPRA, and the way the DOI created their definition was not legal. The Court ruled that the DOI had violated the Administrative Procedures Act in devising their definition of Native American. An agency (National Park Service) defined the term Native American without following the APA procedures which includes, among other steps, a public comment period.

Simply put, for an appeal on the issue of "Native American" to be granted, legal arguments must show that the legal language of NAGPRA does define Native American as the DOI (and the Joint Tribal Coalition) states, and that the DOI did not violate the Administrative Procedures Act in creating their definition.

When we see the actual appeals, we will comment further.

The full Court Record will include the record to date and the appeals to come:

The Administrative Record: In December 2000, the Department of Justice filed more than 20,000 pages of documents. This record includes the information submitted by the Army Corps of Engineers, the Department of the Interior, the Joint Coalition of Tribes, the Plaintiff Scientists, and all Court documents filed up to that time. The Secretary of the Interior was to have considered all this information in making his decision.

The Court Record also includes the scientists opening brief (April, 2001) and the government's reply brief (May, 2001). In June, 2001 the scientists filed a response to the government's reply brief. In addition two amici ('friends of the court'), the Society of American Archaeology and the Joint Tribal Coalition, filed briefs. The transcript of the June 19-20, 2001 hearing of all parties on their positions and the Opinion, filed on August 29, 2002 complete the record.

We will post the appeals documents as soon as we receive copies. We welcome your comments.